State Records Office of WA SROWA

Government of Western Australia, Department for Culture and the Arts.

Series S34 - FILES - PROBATE

Identity area

Reference code

AU WA S34

Title

FILES - PROBATE

Date(s)

  • 1832-01-01 - (Creation)
  • 1832-01-01 - 1947-12-31 (Accumulation)

Level of description

Series

Medium

Format

Files

Status

Context area

Name of creator

AU WA A44 - SUPREME COURT OF WESTERN AUSTRALIA (1861-01-01 -)

Administrative history

A Court of Quarter Sessions was established in Western Australia in 1830 and a Civil Court established two years later. However, as the colony grew and as society became more complex, the judiciary became overtaxed. In the 1850s the equity jurisdiction of the Civil Court was challenged while the courts' jurisdiction in criminal matters was questioned. For these and other reasons, the Supreme Court Ordinance of 1861 was introduced.

The Supreme Court Ordinance (proclaimed on 18 June 1861) provided for a Supreme Court which had the same criminal, common law, and equity jurisdiction as the Courts of Westminister. The Ordinance amalgamated the Court of Quarter Sessions with the Supreme Court and transferred to it a number of functions of the Civil Court. For example, the Supreme Court was empowered to grant probates and letters of administration and given jurisdiction in bankruptcy matters. After 1863, the Supreme Court was also given jurisdiction in matrimonial causes (i.e. divorces).

Under the Ordinance, the officers of the Supreme Court were to be the Chief Justice (Archibald Paull Burt), an Attorney-General, a Master, and a Registrar.

In 1880 a new Supreme Court Act was introduced. The Act which came into force on 1 August 1881, clarified the Court's jurisidiction in admiralty matters and empowered the Chief Justice to make Rules for the conduct of the Court. Provision was also made for the appointment of one or more puisne judges and for the Chief Justice and other judges to sit as a Full Court. Initially, the Full Court could only entertain motions for retrials and pronounce on points of law, but after 1886 it was given the status of a Court of Appeal.

The first sitting of the Supreme Court was held on 3 July 1861 and for the first few years it occupied premises in the Police Court and Gaol Building in Beaufort Street, Perth. In 1863 it moved to the old (1836) Court House in Stirling Gardens and in 1880 moved again to the old (1835) Commissariat Store at the foot of Barrack Street. Despite alterations the Commissariat building was inadequate and in the 1890's work began on a new, purposely-designed courthouse. The new building, completed in 1903, is still the principal seat of the Supreme Court of Western Australia.

Name of creator

AU WA A101 - CIVIL COURT OF WESTERN AUSTRALIA (1832-01-01 - 1860-12-31)

Administrative history

The Legislative Council passed an Act for establishing the Court of Civil Judicature (2 Wm IV No. 1) on the 10 February 1832, to be known as the Civil Court of Western Australia. The Court was to be held before one Judge, called "The Commissioner of the Civil Court of Western Australia". The Court was to deal with all cases as the Courts of Westminister in England, with authority to appoint Guardians and Committees over persons and property of infants, idiots and lunatics, and to grant probates of Wills, and commit letters of Administration. Suits were to be commenced in the Court by Summons and not by arrest.

Pleadings in the Court were to be oral and made in person. In 1861 all the powers of the Civil Court were transferred to the Supreme Court by the Supreme Court Ordinance (24 Vic. No. 15) on 18 June 1861.

Archival history

Content and structure area

Scope and content

Until 1832 there were no legal means of dealing with the estates of deceased persons in Western Australia. (The estates of those who died in the colony between 1829 and 1831 were administered in Britain, were settled informally, or were settled later). In 1832 jurisdiction for the administration of estate was vested in the newly established Civil Court of Western Australia and in 1861 the jurisdiction was transferred to the Supreme Court.

One of the most important statutes affecting the administration of estates was the English Wills Act, 1837, which was adopted by the colony in 1839 (2 Vic; No. 1). This Act which remained in force until it was repealed and re-enacted in 1970 - stipulated that all wills had to be made in writing and signed by the testator in the presence of two witnesses.

The records which constitute this series include original copies of wills, applications for Grants of Probate, copies of death certificates, statements of testators' assets and liabilities, and related documents.

The State Records Office progressively indexing probate files searchable through this database. To locate a file not yet indexed, researchers must first consult an index held by the State Records Office (Record Series Nos. 55, 64 or 1766).

It is possible that no Grant of Probate was issued. In cases where the assets were of little value or were held in joint names, no Grant of Probate is needed, therefore no Supreme Court record exists.

note: Copies of Grants of Probate (which record testators' date of death) and copies of wills (certified by the Court) are to be found in Record Series No. 56. These records may be consulted and copied without written permission of the Principal Registrar of the Supreme Court. Access to these records is via the card index, Record Series No. 55, or via the Nominal Index Record Series No. 64.

Accruals

System of arrangement

Annual single number

Conditions of access and use area

Conditions governing access

Restricted 75 years

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Allied materials area

Existence and location of originals

Related units of description

Identifier

Category of relationship

Controlled

Description of relationship

Dates of relationship

1900-01-01 -

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Related

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Dates of relationship

1832-01-01 -

Identifier

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Controlled

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-

Identifier

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Related

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-

Identifier

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Controlled

Description of relationship

Dates of relationship

1832-01-01 - 1939-12-31

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Archivist's note

Range Control Symbol = 1/1832 - 1675/1947
Physform2 = 9
Copies: Microfilm copies of Cons 3403 (to 1925) are available in the State Records Office of Western Australia. See also microfilm copies of records from WAS 56 (Cons 3436) to 1949 and WAS 2059 (Cons 5564) for selected extracts from files post 1925 to 1933.

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